‘I have lost nearly everything’: My mother’s trustee changed her $1 million will and my attorney fleeced me. What can I do?
Quentin Fottrell
9 min read
“When this lawsuit began, I had over $50,000 in the bank and excellent credit. Now I sleep on the floor of my aunt’s storage bedroom.” (Photo subject is a model.) - Getty Images
Dear Quentin,
I’m the beneficiary of a gift from my mother, but I haven’t been able to receive it even though it has been over two and a half years since she died.
Before my mother died, the trustee isolated her from friends and family and had her change her will. Instead of receiving my half of the estate outright, as originally intended, I was to receive only a monthly allowance and health insurance based on the new documents. Even then, the trustee did not follow the amended trust. She paid herself and ignored me, leaving me no choice but to file suit.
I filed claims for breach of fiduciary duty and undue influence. My attorney, who described himself as a minister doing “God’s work,” had me sign a 40% contingency agreement and assured me that I shouldn’t worry because the trustee would ultimately pay the fees.
The case dragged on with repeated delays. When the lawsuit began, I had over $50,000 in savings and excellent credit. Now I sleep on the floor of my aunt’s storage bedroom while waiting for some kind of resolution. I repeatedly asked my attorney to request a predistribution from the trust, but he always had an excuse. Eventually he said he would request one only as part of a new deal in which he would take up to 70% of whatever I received to cover his so-called hard-money costs.
Nearly two years after my mother died — and after the trustee had spent around $350,000 in legal fees — we went to arbitration over her use of trust funds. We won. She was ordered to repay those fees, though she doesn’t appear to have the money to do so. I believed the case might finally move toward settlement.
Instead, the trustee filed an appeal on the 31st day after a 30-day deadline. Under Florida statutes it appeared to be late, so I expected it to be dismissed. However, my attorney refused to respond to the petition unless I agreed to renegotiate his compensation. It felt like extortion.
Comments by the judge
When we couldn’t come to terms, a withdrawal hearing was held. During that hearing the judge suggested I make an offer that would be advantageous for my attorney, noting that he had a wife and children to support. The judge was unaware of the pressure my attorney had been placing on me.
Afterward, my attorney filed to withdraw. I sent a letter to the judge explaining the situation and copied all parties to avoid ex parte communication. The judge’s assistant initially confirmed it had been submitted for review, but weeks later I was told the judge could not accept personal emails. My letter and the withdrawal notice were never formally filed, yet the withdrawal was suddenly granted and a $240,000 lien was placed on my case.
Since then, my former attorney has continued sending invoices and threatening contempt even though he knows I have no ability to pay.
Today I am broke, in debt and dealing with health issues. I sleep on my aunt’s floor to avoid homelessness. Meanwhile, despite being entitled to half the estate, I have received nothing — not even family keepsakes. The trustee admitted under oath that my mother was vomiting on herself as she was being taken to sign the documents that changed my future.
I now qualify for legal aid due to my financial situation, but because the inheritance is valued at around $1 million, I am apparently not considered eligible. If someone would take the time to look at this case, they would see that no one involved did their job. Unfortunately, it’s a small town and many attorneys refuse to even discuss the matter once they realize who is involved.
I’m suffering and I have lost nearly everything. I am simply the beneficiary of a gift from my mother, yet I’m trapped in a lawsuit I cannot escape. I just want my life back.
Before anyone can judge what really happened here, some questions must be answered. - MarketWatch illustration
Dear Son,
You say what your attorney did felt like extortion. It reads like extortion too.
I will proceed on a worst-case-scenario basis, but it would be naive not to acknowledge that I don’t have both sides of the case, and I have to rely on a relatively brief retelling, which I shortened again for the purposes of this column. I can assume that the facts of the case are as you lay them out, but of course I don’t know for certain if there was actual mismanagement or illegal or unethical behavior (even if, from what you say, it does seem likely).
A $240,000 attorney lien could, after all, reflect time billed in a complex trust case. Contingency agreements can change if litigation becomes much more expensive. If the lien was entered incorrectly, you can file a motion to strike or adjudicate the lien in court.
Before anyone can judge what really happened here, some questions must be answered. For instance, whether the appeal was actually filed late depends on the exact court order being appealed and how and when the paperwork was submitted, since filing deadlines can vary. It also matters whether the arbitration decision was binding and whether it was formally confirmed by the court. Courts can also review your attorney’s claim for fees and determine whether the lien is excessive.
From what you say, however, you were not only let down by the trustee of your mother’s estate, your attorney appears to have held you ransom to increasingly outrageous demands. What’s more, the judge in this case made a strange, unprofessional, legally questionable and anachronistic statement about your lawyer being a husband and father as justification for why he should be given a much larger remuneration.
If — if — that is in fact what happened, it would be highly unusual and inappropriate for a judge to frame the issue that way. Look beyond your small town for help. You can report the judge to the Florida Judicial Qualifications Commission.
Many state bar associations have client security funds or similar services that exist to reimburse clients like you who have had funds embezzled or otherwise stolen by dishonest attorneys. (Again, I don’t know whether that has occurred here.) Funds have limits that vary by state.
In Florida, reimbursement is capped at $250,000. In California, this fund can reimburse clients up to $100,000, depending on when the loss occurred. The New York Lawyers’ Fund for Client Protection reimburses clients for financial losses — up to $400,000 per claim — caused by dishonest conduct of attorneys, such as theft of escrow or estate assets.
Other U.S. states have similar programs. These are typically called client security funds, lawyers’ funds for client protection or client protection funds, and they are operated by the state bar and exist specifically to reimburse clients whose lawyers stole or misappropriated money.
Other routes for justice
Cases like this are exactly why fiduciary rules exist — to ensure that the people managing someone else’s money put the client’s interests ahead of their own. Don’t rule out the Legal Aid Society and National Academy of Elder Law Attorneys, which deal with a lot of cases of undue influence and lack of testamentary capacity.
The American Bar Association provides another route to report your attorney’s behavior and should be able to give you advice on what to do next. “The amount the lawyer charges for legal work must be reasonable, and the client should be told the specifics of all charges,” the ABA says. “A lawyer must be loyal to his or her client. This means that a lawyer cannot represent two clients who are on opposite sides in the same or related lawsuits.”
“If a lawyer is holding a client’s money or property, it must be kept safely and separately from the lawyer’s own funds and belongings,” the association adds. “When a client asks for the property, the lawyer must return it immediately and in good condition. The lawyer must also keep careful records of money received for a client and, if asked, report that amount promptly and accurately.” It further says the disciplinary board or the bar will investigate the complaint or refer you to someone who can.
Assuming the trustee in your case has stolen or misappropriated money from the trust and exercised undue influence over your mother, you can file a petition in probate court to remove the trustee, compel the court to conduct an accounting of your mother’s estate and sue for damages.
Deadlines for bringing these claims vary depending on the state and the type of claim involved, so it’s important to seek legal advice as soon as possible. A dishonest fiduciary is often counting on you becoming financially and emotionally exhausted.
Don’t assume that there is no one who will take a serious look at your case simply because local attorneys decline. The Law Office of Conrad Willkomm, which has offices in Fort Myers and Naples, Fla., offers advice to people in your position.
Trustees often oversee a lot of money, and temptation is sometimes hard to resist. Classic examples include a trustee using estate bank accounts to pay their personal bills, transferring real estate into their own name or making loans from the trust to a business the trustee owns. “Real misconduct starts when those [fiduciary] duties are ignored,” the law firm says.
“It can also look like a trustee who simply refuses to follow the distribution instructions in the will, for example, continuing to hold cash or property that should have been distributed long ago, without a valid reason,” it adds.
“Over the years, we have been asked to review many situations that felt wrong to a beneficiary but did not meet the legal threshold for a breach. The difference often comes down to whether the trustee acted prudently, documented their decisions, and followed the governing document, even if the outcome was not ideal.”
You’ve already been through the mill. I hope you have more fight left in you.
